Let the market decide
4 July 1998
This week The Lawyer questions the worth of the Bar's long-cherished silk system. We also present our own QC list, as recommended by 50 firms, and ask: is it time for a silk cut?
No other event fuels quite so much gossip, tension, joy and despair at the Bar as the silk round.
Every year a new batch of hopeful junior barristers applies for silk and every Easter the lawyers are either rebuffed or invited to join the ranks of the privileged elite of advocates who can put the letters "QC" after their name and hike their fees.
Indeed, such is the excitement and drama surrounding the event, The Lawyer has decided to muscle in on the act.
This year, for the first time, we have conducted our own consultation exercise and we are also publishing our very own silks list.
Unlike the Lord Chancellor's Department (LCD), however, which takes secret soundings among the senior judiciary and senior silks to determine who should and who should not be awarded silk, we have focused our efforts on asking the Bar's professional clients what they think.
We have sounded out the heads of litigation at 50 firms chosen to reflect different regions as well as practice areas to nominate their own silks.
Of course, we are not suggesting our list is perfect not least because we do not know who has applied for silk this year. Neither are we as experienced at taking secret soundings as the LCD. After all, it has been doing it for years.
But the solicitors whom we approached took their task very seriously, and they often consulted with their colleagues before making their suggestions.
We believe they will be intrigued to see a list of those barristers which they and their contemporaries in other firms think deserve silk.
Barristers, too, will be curious to see what names have cropped up on our list and how the list compares with the one which the Lord Chancellor, Lord Irvine, will publish later this week.
Good barristers often take the recommendation of their customers far more seriously than that of their peers.
But by publishing our own silks list, The Lawyer is also making a serious point.
Lord Irvine has repeatedly insisted that lawyers should become more like businessmen and women. He has said that when they take on a case, they should have a financial stake in its outcome. That is why he is so keen on conditional fees.
Yet the system for selecting silks is still rooted firmly in the past. The list of people that the LCD consults over which applications for silk should be approved is still dominated by senior judges, along with members of the Bar Council and circuit leaders.
Is this not sending out the wrong message to those junior barristers who have ambitions to take silk?
Is it not suggesting that they should always be keeping half an eye on how their performances are going down with judges and fellow colleagues, rather than focusing entirely on their clients' interests.
Is this healthy?
Arguably the single most important event in the career of any barrister whether or not they are made a silk is in the hands not of their clients but a third party who, by definition, will only get isolated glimpses of their work.
Perhaps, as former solicitor Peter Reeves argues on page 1of this issue, the entire silk system should be abolished and the market should be left to decide who it thinks are the top advocates.
If the comments of many of the solicitors we consulted are anything to go by, few would bemoan the demise of the silk system. More surprisingly, several of the barristers on our list told us that they also disagreed with the system.
There is, however, a persuasive argument for retaining a system which identifies the bar's best performers.
For while litigation departments in large commercial or legal aid firms may be capable of deciding who they want to instruct, high street practitioners, who may get only a handful of cases a year, may need some help.
But if that is the case, the barristers' profession itself should take the lead, organising some form of "kite-mark" system along the lines of the specialist panels set up by the Law Society.
It may be less glamorous than the silk system but it would also be a lot fairer.
See silks list, page 12.
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